2023 PLP 143 (MLD)

ALI BAIG, C.J.

The petitioner/accused has moved the instant bail petition under section 497, Cr.P.C. for grant of post-arrest bail in case FIR No.155/2021 registered under sections 380, 457, P.P.C. at Police Station Danyore, District Gilgit. Prior to filing the instant bail petition, the learned Sessions Judge, Gilgit and the learned Vacations Judicial Magistrate Gilgit have dismissed bail petitions of the present petitioner/accused, vide order dated 22.02.2022 and order dated 02.02.2022 respectively.

2. Briefly, the allegations leveled against the petitioner/accused as per contents of FIR, are that 29.12.2021 at about 1500 hours, the complainant namely Ajaz Hussain son of Shukoor Ali resident of Amphari Mohallah Danyore submitted an application to the SHO of Police Station Danyore stating therein that on previous night some unknown person/persons have stolen his three goats of worth Rs.110,000/- from his cattle-shed situated at Power House Danyore, whereupon the local police of Police Station Danyore chalked the instant FIR against unknown culprits and commenced investigation of the case. During investigation of the case, the present petitioner/accused and his co-accused have been arrested by the local police as accused.

3. The learned counsel for the petitioner/accused argued that the petitioner/accused is innocent and has falsely been implicated in the instant case with mala fide intention as the petitioner/accused is not directly nominated in the FIR. The learned counsel for the petitioner/ accused further argued that section 380, P.P.C. does not fall within the ambit of prohibitory clause of section 497, Cr.P.C, whereas section 457 does not attract to the case of the petitioner/accused. The learned counsel for the petitioner/accused further contended that the previous record of the petitioner/accused is immaculate and he is not involved in any criminal case. The learned counsel for the petitioner/accused further contended that the case of the petitioner/accused is one of further inquiry as there is no direct evidence on record to connect him with the offence of trespass. Lastly, the learned counsel for the petitioner/accused submitted that no recovery has been effected from the petitioner/accused, therefore, the petitioner is entitled for concession of bail.

4. Contrary to the arguments of learned counsel for the petitioner/accused, the learned Dy. Advocate General contended that the petitioner/accused and his co-accused have been arrested on the spot while committing the offence. The learned Dy. Advocate General further contended that the stolen goats have recovered from the possession of the petitioner/accused and his co-accused on the spot. The learned counsel for the State further argued that offence under section 457, P.P.C. provides imprisonment of 14 years and falls within the ambit of prohibitory clause of section 497, Cr.P.C. while concluding his arguments, the learned Deputy Advocate General submitted that prosecution has accumulated sufficient evidence to establish the guilt of the petitioner/accused, hence the petitioner/accused is not entitled for any concession of bail.

5. I have heard arguments advanced by the learned counsel for the parties and perused the available record of the case with their able assistance.

6. Admittedly the petitioner is not directly charged in the FIR and there is 10 hours delay in lodging of FIR. No eye-witness has witnessed the occurrence, neither the stolen goats have been recovered from the possession of the petitioner/accused rather the said goats were found outside of the cattle-shed.

7. Since there is no direct evidence against the petitioner/accused. So far as offence under section 457, P.P.C. is concerned, prosecution has relied upon circumstantial evidence which will be appreciated by the trial Court after recording of evidence, thus presently the case of the petitioner/accused calls for further inquiry. So far offence under section 380 is concerned, offence under section 380, P.P.C. does not fall within the ambit of prohibition contained in section 497, Cr.P.C. and in such like cases grant of bail is rule and refusal is an exception. Consequently this Court is of the view that the petitioner is entitled for concession of bail.

8. For the foregoing reasons, this petition is ' allowed and the petitioner/accused is admitted to post arrest bail subject to his furnishing bail bonds in the sum of Rs.200,000/- (two lac only) with two sureties each in the like amount to the satisfaction of trial Court.

9. The observations made herein above are entirely tentative in nature, which shall not prejudice the final findings of trial Court.

10. Criminal Miscellaneous No.56/2022 is disposed-off. File SA/76/GB Bail granted.